Citation Nr: 1339693 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-07 577 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from April 1968 to January 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the RO. In March 2012, the Veteran testified at a videoconference hearing before the undersigned; the transcript of this hearing is associated with the file. FINDINGS OF FACT 1. The Veteran participated in combat in Vietnam and he was exposed to acoustic trauma in the form of combat weaponry noise. 2. The Veteran's current bilateral hearing loss is related to his military service. 3. The Veteran's current tinnitus is related to his military service. CONCLUSIONS OF LAW 1. The Veteran's bilateral hearing loss was incurred during his active military service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. The Veteran's tinnitus was incurred during his military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Entitlement to service connection for impaired hearing is subject to the additional requirements of 38 C.F.R. § 3.385, which provides that service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status will be considered a disability for the purposes of service connection when the auditory thresholds in any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The United States Court of Veterans Appeals (Court) has indicated that the threshold for normal hearing is between 0 and 20 decibels and that higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993). Under 38 C.F.R. § 3.303(b), there is an alternative method of establishing the second and third Shedden/Caluza element, which is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Sensorineural hearing loss is considered to be an organic disease of the nervous system, which is one of the disabilities listed in 38 C.F.R. § 3.309. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The evidence is in equipoise as to whether the Veteran's current hearing loss and tinnitus were caused by in-service noise exposure. Based on the findings of the February 2010 VA examination, the Veteran is shown to have a current bilateral hearing loss disability, as defined by VA. He is also shown to have had acoustic trauma based on an award he received for heroism during a combat operation in Vietnam involving a "hail of fire". On February 2010 VA examination, the claims file was reviewed the Veteran's reported history of noise exposure and hearing loss were noted. The audiologist opined it is less likely than not that the Veteran's hearing loss is a result of his military service. Her rationale was based, in part, on finding the Veteran's hearing was normal at both enlistment and separation. She provided the following in-depth explanation: "Exposure to either impulse sounds or continuous exposure can cause a temporary threshold shift. This disappears in 16 to 48 hours after exposure to loud noise. Impulse sounds may also damage the structure of the inner ear resulting in an immediate hearing loss. Continuous exposure to loud noise can also damage the structure of hair cells resulting in hearing loss. If the hearing does not recover completely from a temporary threshold shift, a permanent hearing loss exists. Since the damage is done when exposed to noise, a normal audiogram subsequent to the noise exposure would verify that the hearing had recovered without permanent loss." Regarding tinnitus, the examiner stated: "There is a high correlation between hearing loss, tinnitus and noise exposure. The presence of a ratable hearing loss from the service or audiometric configuration consistent with noise exposure is a strong indicator that any reported tinnitus was also from noise exposure. Conversely, normal hearing from the service strongly suggests any reported tinnitus is less likely to be from noise exposure in service. Since the Veteran's hearing was normal at separation from the service it is less likely as not the reported tinnitus was from military noise exposure. The Veteran's reported tinnitus is more likely than not due to the existing hearing loss and/or noise exposure to subsequent to service. Also of record is an opinion from a private medical doctor, D.D., M.D. Dr. D stated that based upon a review of the Veteran's available records, as well as his clinical notes and examination, he considered it as likely as not that the Veteran's hearing loss and tinnitus were due to his active duty in Vietnam. Dr. D explained that the Veteran was exposed to almost nightly rocket and mortar attacks and heavy weapons firing and that this noise trauma would have been more than sufficient to cause his current conditions. He based his assessment on his training and experience as a physician and cited a study from the National Institutes of Health (NIH). Both the February 2010 VA examiner and D.D., M.D. provided rationales for their opinions and based their opinions upon a review of the Veteran's records. The Board finds that neither opinion is more probative than the other, thereby placing the evidence in equipoise. Accordingly, resolving any doubt in the Veteran's favor, the Board finds that the Veteran's hearing loss and tinnitus were caused by in-service noise exposure. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (holding that when the evidence is in relative equipoise, the claimant prevails). Therefore, service connection for bilateral hearing loss and tinnitus is granted. Because these claims are granted, any question as to whether VA has satisfied its duties to notify and assist is moot. See Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010) (observing that an error that does not affect the outcome of a case is not prejudicial); Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009); see also 38 U.S.C.A. § 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs